A company's image rights: what to do in case of unauthorised use

A competitor uses a photo of your showroom in its advertising, a dissatisfied customer posts a false review accompanied by a picture of your premises, or a former employee shares an image of your products on a social network without permission. On the private individual side, a shopkeeper displays your portrait on its shopfront or website without ever having asked for your consent. These situations call for the same legal reflex, but rest on very different foundations depending on whether one is protecting an individual or a company. This guide explains how to classify unauthorised use of a photo, which levers to use to obtain prompt removal, and how to combine action on a company's online reputation with genuine commercial litigation.

A company does not have an "image right" in the strict sense

The first mistake is to reason as if a legal entity enjoyed the same image right as an individual. That is not the case. The image right of individuals derives from Article 9 of the French Civil Code, which protects private life and applies to human beings. A company has neither a private life nor an image of its person within the meaning of that text.

For the company's assets (premises, façade, furniture, products), the starting point is Article 544 of the French Civil Code on the right of ownership. The case law has, however, settled a long-debated question: the owner of a property does not hold an exclusive right over the image of that property. This is the principle laid down by the judgment of the Plenary Assembly of the Cour de cassation of 7 May 2004. In other words, photographing a façade or a product visible from a public space is not in itself unlawful.

The same judgment sets the decisive limit: the owner may object to the use of the image of its property where that use causes it an abnormal disturbance (trouble anormal). It is this notion of abnormal disturbance that opens the way to an action. A photo of your premises used to suggest that your company endorses a product, to draw your customers towards a competitor, or to harm you, goes beyond a mere visual record and becomes actionable.

The real legal bases available to a company

Since the "image right" in the strict sense does not apply, a company in reality relies on several bodies of rules, often combined in a single case.

• Trade mark law (French Intellectual Property Code) if your logo, sign or distinctive mark is reproduced.
• Copyright if the photograph itself is an original work, which protects the photographer and, by assignment, the commissioning company.
• Unfair competition and free-riding (parasitisme), based on Article 1240 of the French Civil Code, where a third party rides on the back of your reputation or creates confusion.
• Disparagement (dénigrement), also under Article 1240, where derogatory statements target your products or services.
• Abnormal disturbance under Article 544, for the abusive exploitation of the image of a property.

The choice of legal basis is not cosmetic: it determines the competent court, the evidence to be gathered and the realistic amount of compensation.

B2B aspects: premises, products and damage to reputation

In dealings between businesses, unauthorised use of a photo takes three recurring forms, each calling for its own classification.

The photo of your premises or products

Imagine a small building company whose showcase project, a particularly polished piece of work, is photographed by a competitor who presents it on its website as its own reference. Two infringements combine here. First, the abnormal disturbance arising from the exploitation of the image of the property, diverted for the purposes of soliciting business. Second, and above all, unfair competition by appropriating the work of another and creating confusion in the minds of customers. This second angle is often the most effective, because it does not require demonstrating an exclusive right over the image, but wrongful conduct causing competitive harm.

Unauthorised reproduction of a product raises a similar analysis. If the product is protected by a registered design, an action for infringement takes precedence. Failing registration, free-riding takes over: the company that reproduces your commercial visuals to sell a similar item unduly benefits from your investment in design and communication. The loss is then measured by the saving made by the free-rider and the diversion of customers. The conditions in which economic free-riding and unfair competition are penalised are dealt with separately in our article on these two notions.

Use of your trade mark, your logo or your visuals

Use without authorisation of a trade mark registered with the French National Institute of Industrial Property (INPI) constitutes infringement where it concerns identical or similar goods or services and creates a likelihood of confusion. The trade mark owner then has the specific actions under the French Intellectual Property Code, including the infringement seizure (saisie-contrefaçon), a formidable evidential tool that makes it possible to have the infringement recorded by a bailiff (huissier) before any proceedings.

Note, however: citing a competitor's name, including with its logo, remains lawful in the context of fair comparative advertising or objective information. The boundary lies in confusion that is maintained and in the exploitation of another's reputation. A reseller who displays your logo to indicate that it sells your products acts differently from one who uses it to suggest an official partnership that does not exist.

Damage to a company's online reputation

A company's online reputation is today the most frequent type of dispute. An online review, a blog post, a video or a social network post may associate an image of your premises or products with a negative statement. The legal regime then depends on the exact nature of the statement.

Disparagement (dénigrement) targets statements that discredit a company's products, services or work. It is distinct from defamation, which targets a person (natural or legal) in its honour and reputation and falls under the Law of 29 July 1881 on freedom of the press, with its very strict time limits and formalities. The classification is decisive: an action wrongly based on defamation, where the matter was disparagement of products, may be dismissed for procedural defect. Conversely, fair criticism and a customer's genuine opinion remain protected by freedom of expression, even if unfavourable. On disparagement and disorganisation of a competing business, see our analysis illustrated with practical cases and the penalties imposed.

A genuine and measured online review therefore cannot be removed merely because it is unwelcome. On the other hand, a false or abusive review, posted by a fake customer (sometimes a competitor), or accompanied by unauthorised use of a photo of your premises, opens the way to a removal request and an action for damages.

Private individuals: having a photo published without consent removed

For an individual, the logic is reversed: the image right exists and it is powerful. It rests on Article 9 of the French Civil Code and on the principle that everyone has a right over their own image allowing them to object to its capture, reproduction and distribution without their consent.

Everyone has the right to respect for their private life. (Article 9 of the French Civil Code)

Consent must be specific: agreeing to be photographed does not amount to agreeing to distribution, and an authorisation given for one use (an internal brochure, for example) does not cover another use (a national advertising campaign). An employee who consented to appear in the employer's staff directory has not thereby authorised reuse of their portrait after leaving.

Take the concrete example of a 40-year-old customer photographed in a hairdressing salon, whose picture turns up, months later, as the homepage photo of the salon's website. The absence of authorisation to distribute is enough to justify a removal request, regardless of whether the image is in any way demeaning. Unconsented use alone is wrongful.

To this classic basis is now added the protection of personal data. A photograph identifying a person is personal data within the meaning of the General Data Protection Regulation, Regulation (EU) 2016/679 (GDPR), and of Law No. 78-17 of 6 January 1978, known as the Data Protection Act (Informatique et Libertés). The data subject may exercise the right to object and the right to erasure directly with the controller, that is, the entity publishing the image. This dual basis, Article 9 and the GDPR, significantly strengthens the removal request and allows, as a last resort, a complaint to the French data protection authority (Commission nationale de l'informatique et des libertés, CNIL).

The practical steps for responding to unauthorised use

Whether one acts for a company or for a private individual, the method follows a graduated progression, from an amicable record to the judge. Skipping steps often weakens the case.

Securing the evidence first

The disputed content may disappear at any time. The first action is therefore to freeze the evidence. A simple copy and paste or a screenshot has weak evidential value and is easily challenged. The professional reflex is the bailiff's report (constat d'huissier de justice, now commissaire de justice), which describes the page, the URL, the date and the time, and which withstands challenge. For a company, this report conditions the assessment of loss and the credibility of any later action.

At the same time, the author and the host must be identified. The direct author is not always known, but the platform or the host can always be identified and bear their own liability.

The formal notice

The formal notice (mise en demeure) sent to the author, generally by registered letter with acknowledgement of receipt or through a lawyer, recalls the legal basis, describes the infringement, requires removal within a set time and reserves the right to compensation. Properly drafted, it resolves a significant share of disputes without proceedings. It also has a procedural function: it marks the starting point of the bad faith of an author who persists, which then bears on the amount of damages.

Notifying the host or platform (LCEN procedure)

Where the author remains passive or anonymous, Law No. 2004-575 of 21 June 2004 on confidence in the digital economy (LCEN) provides a direct lever. Its Article 6 establishes a liability regime for hosts: they are not liable a priori for the content they store, but become so if they fail to remove promptly manifestly unlawful content that has been duly notified to them.

The notification must comply with a precise formality: identity of the notifying party, description and exact location of the content, legal grounds for removal, and a copy of the prior approach to the author where possible. An incomplete notification may be set aside. Conversely, a rigorous notification of manifestly unlawful unauthorised use of a photo obliges the platform to act, failing which it incurs liability of its own.

Delisting from search engines

Removal at source does not always make the content disappear from search results. Delisting is a complementary action, distinct from removal. The right to delisting was recognised by the Court of Justice of the European Union in the Google Spain judgment of 13 May 2014 (Case C-131/12), and then incorporated into the GDPR regime. It allows, subject to conditions, a request to a search engine to stop associating content with a person's identity. This lever mainly benefits private individuals and named company officers; for a company, action focuses rather on removal of the content itself and on the liability of its author. The steps for exercising the right to be forgotten and obtaining the deletion of personal data are set out in our dedicated article.

Court remedies: from summary proceedings to the merits

Where the amicable route fails, two routes coexist, and the choice is a matter of commercial litigation strategy.

Summary proceedings to act quickly

Urgency often justifies summary proceedings (référé), a rapid procedure before the president of the court. Articles 834 and 835 of the French Code of Civil Procedure make it possible to obtain protective measures or measures to restore the position where the infringement is manifestly unlawful or where imminent damage must be prevented. The judge hearing summary proceedings may order removal subject to a periodic penalty payment (astreinte), that is, a sum payable for each day of delay, which considerably speeds up enforcement. For a company whose online reputation suffers visible harm, this speed is decisive: each day of circulation aggravates the commercial loss.

Proceedings on the merits and compensation

Summary proceedings deal with urgency but do not definitively assess the loss. Proceedings on the merits make it possible to obtain damages, calculated according to the seriousness of the infringement, the duration of circulation, the audience of the medium and the economic loss shown. For a company, this quantification requires tangible evidence: fall in footfall, loss of contracts, crisis management costs. For a private individual, non-material loss linked to the infringement of the image right is compensated even without financial loss, unauthorised use alone giving rise to compensation.

The bridge to commercial litigation

Unauthorised use of an image rarely arises alone. It most often forms part of a wider commercial dispute: breakdown of relations with a former partner who reuses your visuals, a disparagement campaign orchestrated by a competitor, a dispute with a service provider who exploits your projects in its portfolio, or a post-sale conflict over the use of a trade sign following the sale of a business (fonds de commerce). Dealing with the image alone without embracing the overall dispute is a half-measure.

This is where the link with commercial litigation takes on its full meaning: unfair competition, free-riding, sudden termination of established commercial relations (Article L. 442-1 of the French Commercial Code) and contractual intellectual property clauses combine to build a single strategy. Action on the image then becomes one part of a larger case, whose objective is as much redress as the restoration of a commercial balance of power.

Conclusion

The "image right of a company" is a convenient but legally imprecise expression. A company does not protect an image of its person: it defends its assets, its distinctive signs, its creations and its economic reputation, through trade mark law, copyright, unfair competition, free-riding and disparagement. An individual, for its part, has a robust image right under Article 9 of the French Civil Code and the GDPR, where lack of consent alone is enough.

The substantive position is simple: speed comes first, but it never dispenses with rigour in evidence. Content is deleted with one click by its author, and a badly prepared file is lost just as quickly. Before any formal notice or notification, have a report drawn up by a commissaire de justice and have the infringement precisely classified, because it is this classification, disparagement or defamation, infringement or free-riding, abnormal disturbance or infringement of the image right, that determines the legal basis, the competent court and the amount of redress. An error of classification at the outset can ruin an otherwise well-founded action.

Frequently asked questions

Can a company prohibit any photograph of its premises? No. Since the judgment of the Plenary Assembly of the Cour de cassation of 7 May 2004, the owner of a property has no exclusive right over its image. Photographing a façade visible from the public highway is lawful. The company can object to the use of that image only if it shows an abnormal disturbance, for example commercial exploitation that is diverted or intended to harm it.

What is the difference between disparagement and defamation for an online review? Disparagement concerns discredit cast on a company's products, services or work, and is based on Article 1240 of the French Civil Code. Defamation concerns a person's honour and reputation and falls under the Law of 29 July 1881, with short limitation periods and strict formalities. The right classification is essential: a wrongly directed action may be dismissed for procedural defect.

How can I quickly have a photo published without my consent removed? The evidence must first be secured, ideally by a bailiff's report, followed by a formal notice to the author. If the author does not react or remains anonymous, the notification procedure under Article 6 of the LCEN of 21 June 2004 obliges the host to remove manifestly unlawful content promptly. In urgent cases, the judge hearing summary proceedings may order removal subject to a periodic penalty payment.

Is a customer entitled to publish a photo of my shop with a negative review? Yes, as long as the review is genuine, measured and based on a real experience: fair criticism is protected by freedom of expression. The position changes if the review is false or abusive, posted by a fake customer or by a competitor, or if the photo is used to cause harm. The infringement then becomes actionable on the basis of disparagement or unfair competition.

Does the GDPR apply to the publication of a photo of a person? Yes. A photograph that identifies a person is personal data within the meaning of Regulation (EU) 2016/679 (GDPR) and of the Data Protection Act of 6 January 1978. The data subject may exercise the right to object and the right to erasure against whoever publishes the image, and refer the matter to the CNIL in the event of unjustified refusal.

Must an employee give consent again after leaving the company? Consent to the use of one's image is specific and limited to the use envisaged. An authorisation given for a particular medium during the contract does not cover retention or reuse of the image after departure. The former employee may therefore ask for their portrait to be removed from the company's communication media, under Article 9 of the French Civil Code and the GDPR.

Should one act in summary proceedings or on the merits against unauthorised use of a photo? The two routes are complementary. Summary proceedings, based on Articles 834 and 835 of the French Code of Civil Procedure, make it possible to obtain removal quickly, subject to a periodic penalty payment, where the infringement is manifest. Proceedings on the merits definitively assess the loss and allow damages to be awarded. In a wider commercial dispute, action on the image is most often integrated into an overall commercial litigation strategy.